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JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 140 of 19710/21/2011planned development of Delhi. In Pista Devi case [ 1986 (4) SCC 251 ] this Court while considering the legality ofthe exercise of the power under Section 17(4) exercised by the State Government dispensing with the inquiryunder Section 5-A for acquiring housing accommodation for planned development of Meerut, had held thatproviding housing accommodation is national urgency of which court should take judicial notice. The prenotificationand post- notification delay caused by the officer concerned does not create a cause to hold that thereis no urgency. Housing conditions of Dalits all over the country continue to be miserable even till date and is a factof which courts are bound to take judicial notice. The ratio of Deepak Pahwa case [1984 (4) SCC 308 : 1985 (1)SCR 588] was followed. In the at case a three- Judge Bench of this Court had upheld the notification issued underSection 17(4), even though lapse of time of 8 years had occurred due to inter- departmental discussions beforereceiving the notification. That itself was considered to be a ground to invoke urgency clause. It was further heldthat delay on the part of the lethargic officials to take further action in the matter of acquisition was not sufficient tonullify the urgency which existed at the time of the issuance of the notification and to hold that there was neverany urgency. In Jage Ram v. State of Haryana [1971 (1) SCC 671] this Court upheld the exercise of the power ofurgency under Section 17(4) and had held that the lethargy on the part of the officers at an early stage was notrelevant to decide whether on the day of the notification there was urgency or not. Conclusion of the Governmentthat there was urgency, though not conclusive, is entitled to create weight. In Deepak Pahwa case [1984 (4) SCC308 : 1985 (1) SCR 588] this Court held that very often person interested in the land proposed to be acquired maymake representations to the authorities concerned against the proposed writ petition that is bound to result inmultiplicity of enquiries, communications and discussions leading invariably to delay in the execution of evenurgent projects. Very often delay makes the problem more and more acute and increases urgency of thenecessity for acquisition. In Rajasthan Housing Board v. Shri Kishan [ 1993 (2) SCC 84 ] (SCC at p. 91), thisCourt had held that it must be remembered that the satisfaction under Section 17(4) is a subjective one and thatso long as there is material upon which Government could have formed the said satisfaction fairly, the Courtwould not interfere nor would it examine the material as an appellate authority. In State of U.P. v. Keshav PrasadSingh [ 1995 (5) SCC 587 ] (SCC at p. 590), this Court had held that the Government was entitled to exercise thepower under section 17(4) invoking urgency clause and to dispense with inquiry under Section 5-A when theurgency was noticed on the facts available on record. In Narayan Govind Gavate case a three-Judge Bench ofthis Court had held that Section 17(4) cannot be read in isolation from Section 4(1) and Section 5-A of the Act.Although 30 days from the notification under Section 4(1) are given for filing objections under Section 5-A, inquirythereunder unduly gets prolonged. It is difficult to see why the summary inquiry could not be completed quiteexpeditiously. Nonetheless, this Court held the existence of prima facie public purpose such as the one present inthose cases before the Court could not be successfully challenged at all by the objectors. It further held that it wasopen to the authority to take summary inquiry under Section 5-A and to complete inquiry very expeditiously. It wasemphasised that : (SCC p. 148, para 38)"... The mind of the officer or authority concerned has to be applied to the question whether there is an urgency ofsuch a nature that even the summary proceedings under Section 5-A of the Act should be eliminated. It is not justthe existence of an urgency but the need to dispense with an inquiry under Section 5-A which has to beconsidered."Another three Judge Bench judgment in the case of Meerut Development Authority and others vs. Satbir Singhand others reported in (1996)11 S.C.C. 462 considered the question of invocation of urgency clause in landacquisition for housing development. In paragraph 19 of the said judgment, relying on the Constitution Benchjudgment in the case of Aflatoon vs. Lt. Governor of Delhi reported in (1975)4 S.C.C. 285 and two Judge Benchjudgment in State of U.P. vs. Pista Devi (supra), it was observed that housing development is an urgent purposeand invocation of Section 17(1) dispensing with the inquiry is not invalid. It is relevant to note that earlier threeJudge judgment in Narain Govind Gavate's case (supra) was not noticed and reliance was placed on ConstitutionBench judgment in Aflatoon's case (supra) whereas in the Constitution Bench judgment in Aflatoon's case (supra)Section 5A of the Act was not dispensed with and objections were invited and about 6000 objections were filed.In the case of Om Prakash and another vs. State of U.P. and others reported in (1998)6 SCC 1 the Apex Courthad occasion to consider invocation of urgency clause under Section 17(4) in context of acquisition of land ofvillage Chhalera Banger situate in district Ghaziabad in State of Uttar Pradesh in which notification the publicpurpose was for the planned industrial development of district Ghaziabad through New Okhla IndustrialDevelopment Authority as in the present case. The notifications were challenged in the High Court and the HighCourt came to the conclusion that the land acquisition proceedings were not vitiated and the writ petitions weredismissed. The Apex Court looked into the all relevant materials which were before the Government including theproposal submitted by the GNOIDA for acquisition. The Apex Court also noticed one year delay from thesubmission of proposal recommending invocation of urgency clause and further delay of 9 months in issuingdeclaration under Section 6. The Apex Court observed that above conduct of the respondents falsify their claim ofurgency for acquisition. After considering the materials, which were before the State Government, the Apex Court
JUDGMENT/ORDER IN - WRIT - C No. 37443 of 2011 at Allahabad Dated-21.10....http://elegalix.allahabadhighcourt.in/elegalix/WebShowJudgment.doPage 141 of 19710/21/2011came to the conclusion that there was no relevant material before the State Government when it invoked thepower under sub-section (4) of Section 17 dispensing with the inquiry. The three Judge judgment in NarayanGovind Gavate's case (supra) as well as two Judge judgment in State of U.P. vs. Pista Devi (supra) were referredto. The Apex Court also made observation that the later Bench of two learned Judges of the Apex Court in Stateof U.P. vs. Pista Devi's case (supra) could not have laid down any legal proposition contrary to the earlier decisionof three Judge Bench. Following was laid down in paragraphs 20, 23 and 25 of the said judgment:-"20. It is no doubt true that the aforesaid decision of three Judge Bench of this Court was explained by latter toJudge Bench decision of this Court in State of U.P. v. Smt. Pista Devi (supra) as being confined to the factsituation in those days when it was rendered However, it is trite to note that the latter Bench of two learned judgesof this court could not have laid down any legal proposition by way of a ratio which was contrary to the earlierdecision of three Judge Bench in Narayan govind Gavate (supra). In fact, both these decisions referred to the factsituations in the light of which they were rendered.23. It is now time for us to refer to certain latter decisions of this Court to which strong reliance was placed by ShriMohta, learned senior counsel for NOIDA. In the case of A.P. Sareen and Others Vs. State of U.P. and Others[ (1997) 9 SCC 359], a two Judge Bench of this Court consisting of Ramaswamy J. and G. T. Nanavati J, had toconsider the question whether the need for urgent possession underlying acquisition proceedings could cease toexist only because of bureaucratic inadvertence. It was held on the facts of that case that urgency continued solong as the scheme was not initiated, action taken and process completed. It is, of course, true that while decidingthis question, it is observed that it is well settled legal position that urgency can be said to exist when landproposed to be acquired is needed for planned development of the city or town, etc. The said observation clearlyshows that in appropriate cases when acquisition is needed for planned development of city or town urgencyprovisions can be invoked. This aspect is legislatively recognised by enactment of Section 17(1A) by U.P.legislature. But the said observations cannot be read to mean that in every case of planned development of city ortown necessarily and almost automatically urgency clause has to be invoked and inquiry under Section 5-A is tobe dispensed with. It will all depend upon the facts and circumstances of each case. The aforesaid observationscannot be held to be laying down nay absolute proposition that whenever any acquisition is to take place forplanned development of city or town, section 5-A should be treated to be almost otios or inoperative. Such is notthe ratio of the aforesaid decision and nothing to that effect can even impliedly be read in the aforesaidobservation which is of general nature. It only suggests that in appropriate cases, urgency clause can be invokedwhen the land is proposed to be acquired for planned development of city or town.25. In the light of the aforesaid discussion, therefore, the conclusion becomes inevitable that the action ofdispensing with inquiry under Section 5-A of the Act in the present cases was not based on any real and genuinesubjective satisfaction depending upon any relevant data available to the State authorities at the time when theyissued the impugned notification under section 4(1) of the Act and dispensed with Section 5-A inquiry by resortingto Section 17 sub-section (4) thereof. The first point is, therefore, answered in the negative, in favour of theappellants and against the contesting respondents."A three Judge Bench of the Apex Court had occasion to consider invocation of urgency clause under Section 17(4) in the case of Union of India vs. Mukesh Hans reported in 2004(8) SCC 14. The three Judge Bench laid downin the said case that invocation of Section 17(4) of the Act is not automatic on invocation of Section 17(1) of theAct. It has been held that there has to be separate and independent application of mind as to whether there issuch an urgency for dispensation of inquiry. Following was laid down by the Apex Court in paragraphs 32, 33 and34 of the said judgment:-32. A careful perusal of this provision which is an exception to the normal mode of acquisition contemplated underthe Act shows mere existence of urgency or unforeseen emergency though is a condition precedent for invokingSection 17(4) that by itself is not sufficient to direct the dispensation of 5A inquiry. It requires an opinion to beformed by the concerned government that along with the existence of such urgency or unforeseen emergencythere is also a need for dispensing with 5A inquiry which indicates that the Legislature intended that theappropriate government to apply its mind before dispensing with 5A inquiry. It also indicates the mere existence ofan urgency under Section 17 (1) or unforeseen emergency under Section 17 (2) would not by themselves besufficient for dispensing with 5A inquiry. If that was not the intention of the Legislature then the latter part of subsection(4) of Section 17 would not have been necessary and the Legislature in Section 17 (1) and (2) itself couldhave incorporated that in such situation of existence of urgency or unforeseen emergency automatically 5Ainquiry will be dispensed with. But then that is not language of the Section which in our opinion requires theappropriate Government to further consider the need for dispensing with 5A inquiry in spite of the existence ofunforeseen emergency. This understanding of ours as to the requirement of an application of mind by theappropriate Government while dispensing with 5A inquiry does not mean that in and every case when there is an
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